Doctors And The Right To Countersue

May 25, 1985|By M.D. Reiss, M.D.

ELK GROVE VILLAGE — Doctors should not be given special privileges, asserts the Illinois Trial Lawyers Association (ITLA) in the present malpractice reform debate. If they make a mistake, doctors should pay, and pay big. This is only strict insistence on responsibility for our actions or our errors, and there may be something to be said for a sense of responsibility.

Now comes House Bill 1604 before the House Judiciary Subcommittee, composed primarily of lawyers. This bill does not try in any way to lessen doctors` responsibilities. It simply proposes to remove a requirement that doctors prove ``special damages,`` now required in Illinois in order to be compensated in cases of malicious prosecution. Because of this ``special damage`` requirement, there has not been a successful countersuit in Illinois for over 50 years and attorneys have been free to sue any and every doctor for the flimsiest of reasons with no concern for consequences.

HB 1604 now is addressing instances of which damage is inflicted on doctors who have made no mistakes whatever, and would like their day in court to recover for the damages that they have suffered. But instead of upholding this concept of responsibility, the judiciary subcommittee tried, in fact, to kill the bill and prevent the full House from even debating it. Fortunately, it was discharged from the subcommittee against its will, and will be considered by the House. But where was the professed doctrine of

responsibility for mistakes?

In denying doctors the right to countersue for malicious litigation in the past, courts have said that it would have a ``chilling effect`` on people`s right to sue doctors. This is probably true. But these reviewers were not concerned about the ``chilling effect`` that the present avalanche of frivolous malpractice suits has had on the practice of medicine. It has reached such a point that doctors consider a great many of their patients as potential adversaries or litigants, which is not beneficial either for the patients or the doctors. And the environment is so chilled that older, highly skilled and experienced doctors, who would like to continue working part time, can hardly afford the high malpractice premiums and are forced into retirement when they cannot carry a full workload.

Law cases are tried regularly in which an appellate court overturns another court`s actions because of mistakes. Perhaps the judge erred in conducting the trial. Someone may have suffered serious loss of property, liberty or worse, but does the judge pay? Perhaps we should have a law that judges are penalized $5,000 every time they have made a mistake and a decision or case is overturned on appeal.

Recently a jury determined that a defendant was guilty of murder. An appeals court reversed the conviction on the basis of some mistake during the trial. Had a doctor made such a mistake, he would likely have paid dearly. Then a legal technicality, a delay in proceeding with a new trial, allowed defense attorneys to get the defendant off completely. It was said that the clerk erred in not bringing the case to the attention of the attorneys. How far would a surgeon get, after leaving an instrument in his patient`s abdomen, by blaming the operating room nurse for an erroneous instrument count? But lawyers assumed no responsibility, and even dismissed the error of the clerk by saying that the case ``slipped through the cracks` and an error was made.

``No one walks on water,`` they said. Tell that to the family of the next person murdered. Is anyone paying for these errors? Not on your life.

There is something to be said for assigning strict responsibility and accountability to members of society. But for the Illinois Trial Lawyers Association to call for doctors to pay dearly for mistakes, and then protest being held accountable for their own errors, appears inconsistent and hypocritical. HB 1604 only asks that doctors have equal access to the courts, which seems to be society`s passion these days. Instead of opposing this, lawyers should see the bright side. It would give them another case.